96-F-140 - Appointed Counsel for Minor in Abortion Case

Formal Ethics Opinion 96-F-140

Inquiry is made as to several issues involving the ethical obligations of court-appointed counsel for minors who obtain abortions via judicial bypass of the parental consent for abortion provisions within Tennessee Code Annotated (T.C.A.) §§37-10-303 and 37-10-304.


The inquiring attorney routinely practices before the Juvenile Court in a particular county, and said attorney has been appointed to represent minors who have elected to petition the Juvenile Court for waivers of the parental consent requirement to obtain abortions, pursuant to T.C.A. §37-10-303(b) (ch. 458, Acts 1995, effective July 1, 1995). Several moral, ethical and constitutional law issues have been presented in the inquiry, and all of them are interrelated and sometimes conflicting.


The specific components of the inquiry posed are as follows: (1) have court-appointed attorneys for minors committed ethical violations where the above bypass procedures are later declared unconstitutional, and where abortions have already been performed; (2) is the role of court-appointed counsel under this statutory scheme that of advocate for the child or guardian ad litem; (3) should the appointed counsel advise the minor seeking an abortion about alternatives and/or advise her to speak with her parents or legal guardian about the potential abortion; (4) what is the minimum age that a minor can seek permission for an abortion, and is the appointed attorney required to inform the court if the client is believed to be non compos mentis; (5) can the appointed attorney decline to accept the appointment for moral, religious or malpractice insurance reasons; and (6) is there a requirement that minors seeking abortions under the judicial bypass provisions set out above be Tennessee residents.


Responding to these issues in order of their presentation, as to the first question, it appears that since the appointed attorney represents the minor under the provisions of existing law (which has yet to be declared unconstitutional), the attorney represents the client within the bounds of the law, and does not violate DR 7-102(A)(2). To suggest that an attorney would be subjected to ethical sanctions for such representation could be interpreted as  granting a determination of unconstitutionality the effect of a retrospective law, prohibited by Article 1, §20 of the Tennessee Constitution, See Morris v. Gross, 572 S.W. 2d 902, 908 (Tenn. 1978); Morford v. Yong Khun Cho, 732 S.W. 2d 617, 619-620 (Tenn. App. 1987).


Resolution of the second question may be more appropriately determined by a court of law or by other authorities, as the issue appears more legal in nature than ethical. However, the statute regarding which inquiry is made and other provisions of T.C.A. Title 37 relating to juveniles suggest that the appointed attorney represents only the minor. T.C.A. §37-10-304(c)(1)
states, in pertinent part, that...


...[t]he minor may participate in
proceedings in the court on her own behalf or
through next friend. The court shall advise
her that she has a right to court-appointed
counsel and shall provide her with such
counsel upon her request...(Emphasis added).


Conversely, T.C.A. §§34-11-101(10) and 34-11-107(d) set forth that the guardian ad litem's duty is to the court, and not to act as advocate for the minor child. 

If the appointed attorney represents only the minor (as we believe), then counsel has a duty to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." DR 7-101(A)(3). Whether informing the minor about alternatives to abortion and suggesting that she discuss the potential procedure with her parents or legal guardian is ethically appropriate may depend on a case-bycase analysis. If the minor is truly mature and well-informed enough to go forward and make the decision on her own, then
counsel's hesitation and advice for the client to consult with others could possibly implicate a lack of zealous representation under DR 7-101(A)(4)(a) and (c) (a lawyer shall not intentionally fail to seek the client's lawful objectives, or prejudice or damage his client during the course of the professional relationship). Counsel also has a duty of undivided loyalty to his client, and should not allow any other persons or entities to regulate, direct, compromise, control or interfere with his professional judgment. Tennessee Formal Ethics Opinions 83-F-52 and 85-F-100; EC 5-1. To the extent that counsel strongly recommends that his client discuss the potential abortion with her parents or with other individuals or entities which are known to oppose such a choice, compliance with Canon 5 is called into question. In the same light, counsel himself is prohibited from discussing confidences and secrets of the client with such entities by DR 4-101.

The first portion of the fourth question is a purely legal question--the determination of the minimum age before minors can seek judicial permission for abortion is not within the ambit of this Board's authority. On the other hand, the second portion of this question can be addressed. If the client is believed to be incompetent or insane, appointed counsel in this scenario would appear to have the same obligation to advise the court as isrequired for defense counsel in criminal cases, pursuant to Tennessee Formal Ethics Opinion 92-F-129. The Board cited EC 7-12 in this formal opinion for the proposition that "any mental or physical condition of a client that renders [her] incapable of making a considered judgment on [her] own casts additional responsibility on [her] lawyer." Moreover, the Board went on to note that while generally a lawyer has no authority to act without the consent of his client, under circumstances where the client's competency is in question, the lawyer may act to preserve the client's rights. State v. Aumann, 265 N.W. 2d 316, 318 (Iowa 1978); EC 7-12.


Counsel's fifth question is the most difficult to answer, given that legal and ethical issues are inextricably intertwined. Essentially, counsel asks whether he can ethically decline such appointments due to malpractice insurance reasons, and a deepseated, sincere belief that appointments in such cases constitute state action violative of his free exercise of religion rights guaranteed by the First Amendment to the United States Constitution. DR 6-102(A) states that a lawyer should not attempt to exonerate himself from or limit his liability to his client for personal malpractice; thus, this reason does not appear to be a sufficient ground for declining such appointments. Counsel also alleges that he is a devout Catholic and cannot, under any circumstances, advocate a point of view ultimately resulting in what he considers to be the loss of human life. The religious beliefs are so compelling that counsel fears his own personal interests will subject him to conflicting interests and impair his independent professional judgment in violation of DR 5-101(A). In other words, counsel contends his status is akin to that of a conscientious objector, who is opposed to participation in abortion in any form.


Although counsel's religious and moral beliefs are clearly fervently held, EC 2-29 exhorts appointed counsel to refrain from withdrawal where a person is unable to retain counsel, except for compelling reasons. Compelling reasons as contemplated by this EC do not include such factors as:


...the repugnance of the subject
matter of the proceeding, the
identity or position of a person
involved in the case, the belief of
Formal Ethics Opinion 96-F-140 Page 4
the lawyer that the defendant in a
criminal proceeding is guilty , or the belief
of the lawyer regarding the merits of the
civil case.


Several Tennessee cases addressing this issue from the perspective of contempt cast serious doubt on whether such an argument would prevail. In State v. Jones, 726 S.W. 2d 515, 518- 519 (Tenn. 1987), the Supreme Court upheld a contempt citation against an attorney who refused to accept a court-ordered appointment based on his interpretation of a formal ethics opinion, even where counsel's refusal was not disrespectful, unreasoning or contumacious. Procedurally, the Supreme Court held that in order for an attorney to avoid contempt for refusal to obey an order of appointment perceived to be erroneous, it was necessary for counsel to seek dissolution of the order in the appellate courts. Id. at 517. The court went on to hold that a lawyer who questions the propriety of an appointment has the burden of making a showing that a conflict of interest exists and that trial judges must afford counsel a reasonable opportunity to develop an adequate record on that issue for appellate review purposes. Id. at 520-521. On the contrary, in State v. Maddux, 571 S.W. 2d 819 (Tenn. 1978), the Supreme Court reversed counsel's summary contempt citation where counsel was merely seeking to be relieved of the appointment. Counsel's actions had not yet become an unreasoning and contumacious refusal to abide by the rulings of the court. Id. at 831. As to the reasons for seeking withdrawal, the Supreme Court reiterated that it would have scant sympathy for an attorney who sought to avoid representation merely because the defendant's cause was unpopular, or because the crime of which he was accused was distasteful, citing EC 2-29. Id.


Reported federal cases are similarly pessimistic on whether one's free exercise rights are unconstitutionally burdened under analogous facts. See Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987), cert. denied 484 U.S. 1066, 108 S.Ct. 1029, 98 L. Ed. 2d 993 (1988) (requiring children to read from texts they found offensive to their religious beliefs did not burden students' rights to free exercise of religion). Cf. U.S. v. Greene, 892 F. 2d 453, 456 (6th Cir. 1989), cert. denied 495 U.S. 935, 110 S. Ct. 2179, 109 L. Ed. 2d 508 (1990) (in order to assert free exercise of religion as a defense to violation of a criminal statute, defendant must establish that his beliefs constitute a religion within the meaning of the First Amendment and that statutes in question do not serve a compelling governmental interest).


Ultimately, counsel should allow the juvenile court to determine as a matter of law the propriety of his withdrawal after motion and hearing to develop an adequate record, pursuant to the Tennessee Supreme Court's Jones and Maddux decisions. Circumstances in which attorneys could face ethical sanctions can Formal Ethics Opinion 96-F-140 Page 5 be easily envisioned such as where permission to withdraw from a tribunal is required under DR 2-110(A)(1), and attorneys do not obtain same. Tennessee Formal Ethics Opinion 84-F-73 is also instructive on this issue, although this opinion specifically addresses ethical obligations of counsel in first degree murder cases. The Board opined, though, in cases involving conflicts between the moral and ethical beliefs of counsel and those of his client that:


...[c]ounsel's moral beliefs and
usually acceptable ethical
standards and duties must yield to
the moral beliefs and legal rights
of the defendant...


Counsel is ethically obligated
to follow the law and to do nothing
in opposition to the client's moral
and legal choices...


Counsel should move the court
to withdraw during the portion of
the trial where the conflict
is manifested. In the event the
court fails to grant such motions,
the attorney should seek an
immediate review by the appellate
court...


The sixth and final question posed by the inquiring attorney also appears to be solely an issue of law, and one more properly addressed by other entities or the courts. This opinion is only intended to address the ethical obligations of counsel.


This 13th day of June, 1996.


ETHICS COMMITTEE:


Donna S. Massa, Chair
Barbara J. Moss
Larry D. Wilks


APPROVED AND ADOPTED BY THE BOARD